Texas 2015 - 84th Regular

Texas House Bill HB4056 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	84R8698 JSC-F
2	2	By: White of Tyler H.B. No. 4056
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to inspection procedures in certain long-term care
8	8	facilities and the creation of a long-term care legislative
9	9	oversight committee; providing penalties.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Section 242.039, Health and Safety Code, is
12	12	amended by adding Subsections (h) and (i) to read as follows:
13	13	(h) On application of an institution licensed under this
14	14	chapter, a municipal fire marshal may grant a waiver for a violation
15	15	of a life safety requirement or fire safety standard cited in the
16	16	department's final official statement of violations after an
17	17	inspection, survey, or investigation conducted under Section
18	18	242.043 or 242.044 if the fire marshal finds that:
19	19	(1) the institution met all applicable life safety
20	20	requirements and fire safety standards at the time the institution
21	21	was initially licensed; and
22	22	(2) the waiver will not have an adverse effect on
23	23	resident health and safety.
24	24	(i) An institution that receives a waiver under Subsection
25	25	(h) is not required to include the waived violation in the
26	26	institution's plan to correct violations submitted under Section
27	27	242.0445.
28	28	SECTION 2. Section 242.043, Health and Safety Code, is
29	29	amended by adding Subsections (i), (j), (k), (l), and (m) to read as
30	30	follows:
31	31	(i) A department employee may not conduct an inspection,
32	32	survey, or investigation of an institution unless the employee is a
33	33	health care professional licensed in this state. An officer or
34	34	employee of an institution may require the department employee to
35	35	provide proof of the licensure before the department employee
36	36	conducts an inspection, survey, or investigation.
37	37	(j) The leader of a department survey team that conducts an
38	38	inspection, survey, or investigation of an institution must be a
39	39	registered nurse licensed in this state who has training,
40	40	knowledge, and experience in geriatric care.
41	41	(k) The department or the department's representative who
42	42	conducts an inspection, survey, or investigation may not cite a
43	43	violation unless the department or the department's representative
44	44	finds, by a preponderance of the evidence, that a violation has
45	45	occurred.
46	46	(l) The department or the department's representative shall
47	47	include on the department's inspection form:
48	48	(1) a brief description of the evidence that supports
49	49	a finding that a violation occurred; and
50	50	(2) the name and title of the person who found each
51	51	violation.
52	52	(m) The executive commissioner shall adopt rules to ensure
53	53	that among the community services regions the department uniformly
54	54	administers inspections, surveys, and investigations and
55	55	consistently interprets and enforces the rules and laws regulating
56	56	the institutions. The executive commissioner shall prepare and
57	57	deliver a quarterly progress report on uniform administration,
58	58	interpretation, and enforcement to the Health and Human Services
59	59	Commission and the appropriate health and human services
60	60	legislative standing committees.
61	61	SECTION 3. Section 242.0445, Health and Safety Code, is
62	62	amended by amending Subsection (b) and adding Subsection (d) to
63	63	read as follows:
64	64	(b) At the conclusion of an inspection, survey, or
65	65	investigation under Section 242.043 or 242.044, the department or
66	66	the department's representative conducting the inspection, survey,
67	67	or investigation shall discuss the violations with the facility's
68	68	management in an exit conference. The department or the
69	69	department's representative shall leave a written list of the
70	70	violations with the facility at the time of the exit conference. If
71	71	the department or the department's representative discovers any
72	72	additional violations during the review of field notes or
73	73	preparation of the official final list, the department or the
74	74	department's representative shall give the facility an additional
75	75	exit conference regarding the additional violations. An additional
76	76	exit conference must be held in person and may not be held by
77	77	telephone, e-mail, or facsimile transmission. The department or
78	78	the department's representative may not conduct an additional
79	79	inspection, survey, or investigation during an additional exit
80	80	conference. The department or the department's representative may
81	81	not use an additional exit conference to retaliate against a
82	82	facility for:
83	83	(1) filing a complaint against the department or the
84	84	department's representative regarding an inspection, survey, or
85	85	investigation; or
86	86	(2) requesting an administrative hearing to contest a
87	87	finding of a violation of this chapter.
88	88	(d) The department or the department's representative may
89	89	not require a facility, through an inspection, survey, or
90	90	investigation or the final official statement of violations, to
91	91	take any action that conflicts with best practices for the facility
92	92	or a written order of a physician. A facility shall provide
93	93	evidence that the statement of violations conflicts with best
94	94	practices for the facility or a written order of a physician in the
95	95	facility's plan to correct violations. A facility is not required
96	96	to correct a violation that conflicts with best practices for the
97	97	facility or the written orders of a physician.
98	98	SECTION 4. Subchapter B, Chapter 242, Health and Safety
99	99	Code, is amended by adding Section 242.0446 to read as follows:
100	100	Sec. 242.0446. CIVIL LIABILITY. (a) An institution may
101	101	bring a civil action against an employee or representative of the
102	102	department who conducts an inspection, survey, or investigation
103	103	under Section 242.043 or 242.044 and in bad faith or with a
104	104	malicious purpose makes a false or inaccurate statement of a
105	105	violation found during the inspection, survey, or investigation.
106	106	(b) An employee or representative of the department who is
107	107	found liable under this section is not entitled to indemnification
108	108	under Chapter 104, Civil Practice and Remedies Code.
109	109	SECTION 5. Section 247.027, Health and Safety Code, is
110	110	amended by adding Subsections (c), (d), (e), (f), (g), and (h) to
111	111	read as follows:
112	112	(c) On application of an assisted living facility licensed
113	113	under this chapter, a municipal fire marshal may grant a waiver for
114	114	a violation of a life safety requirement or fire safety standard
115	115	cited in the department's final official statement of violations
116	116	after an inspection conducted under this section if the fire
117	117	marshal finds that:
118	118	(1) the facility met all applicable life safety
119	119	requirements and fire safety standards at the time the facility was
120	120	initially licensed; and
121	121	(2) the waiver will not have an adverse effect on
122	122	resident health and safety.
123	123	(d) An assisted living facility that receives a waiver under
124	124	Subsection (c) is not required to include the waived violation in
125	125	the facility's plan of correction submitted under Section 247.0271.
126	126	(e) A department employee may not conduct an inspection of
127	127	an assisted living facility unless the employee is a health care
128	128	professional licensed in this state. An officer or employee of a
129	129	facility may require the department employee to provide proof of
130	130	the licensure before the department employee conducts an
131	131	inspection.
132	132	(f) A department employee who conducts an inspection may not
133	133	cite a violation unless the employee finds, by a preponderance of
134	134	the evidence, that a violation has occurred.
135	135	(g) The department employee shall include on the
136	136	department's inspection checklist:
137	137	(1) a brief description of the evidence that supports
138	138	a finding that a violation occurred; and
139	139	(2) the name and title of the person who found each
140	140	violation.
141	141	(h) The executive commissioner of the Health and Human
142	142	Services Commission shall adopt rules to ensure that among the
143	143	community services regions the department uniformly administers
144	144	inspections and consistently interprets and enforces the rules and
145	145	laws regulating the assisted living facilities. The executive
146	146	commissioner shall prepare and deliver a quarterly progress report
147	147	on uniform administration, interpretation, and enforcement to the
148	148	Health and Human Services Commission and the appropriate health and
149	149	human services legislative standing committees.
150	150	SECTION 6. Section 247.0271, Health and Safety Code, is
151	151	amended by adding Subsections (c-1) and (e) to read as follows:
152	152	(c-1) The inspector may not conduct an additional
153	153	inspection during an additional exit conference. The inspector may
154	154	not use an additional exit conference to retaliate against an
155	155	assisted living facility for:
156	156	(1) filing a complaint against the department or the
157	157	inspector regarding an inspection; or
158	158	(2) requesting an administrative hearing to contest a
159	159	finding of a violation of this chapter.
160	160	(e) The inspector may not require an assisted living
161	161	facility, through an inspection or the final official statement of
162	162	violations, to take any action that conflicts with best practices
163	163	for the facility or a written order of a physician. A facility shall
164	164	provide evidence that the statement of violations conflicts with
165	165	best practices for the facility or a written order of a physician in
166	166	the facility's plan of correction. A facility is not required to
167	167	correct a violation that conflicts with best practices for the
168	168	facility or the written orders of a physician.
169	169	SECTION 7. Subchapter B, Chapter 247, Health and Safety
170	170	Code, is amended by adding Section 247.0273 to read as follows:
171	171	Sec. 247.0273. CIVIL LIABILITY. (a) An assisted living
172	172	facility may bring a civil action against a department employee who
173	173	conducts an inspection under Section 247.023 or 247.027 and in bad
174	174	faith or with a malicious purpose makes a false or inaccurate
175	175	statement of a violation found during the inspection.
176	176	(b) A department employee who is found liable under this
177	177	section is not entitled to indemnification under Chapter 104, Civil
178	178	Practice and Remedies Code.
179	179	SECTION 8. Section 252.038, Health and Safety Code, is
180	180	amended by adding Subsections (f) and (g) to read as follows:
181	181	(f) On application of a facility licensed under this
182	182	chapter, a municipal fire marshal may grant a waiver for a violation
183	183	of a life safety requirement or fire safety standard cited in the
184	184	department's final official statement of violations after an
185	185	inspection, survey, or investigation conducted under this chapter
186	186	if the fire marshal finds that:
187	187	(1) the facility met all applicable life safety
188	188	requirements and fire safety standards at the time the facility was
189	189	initially licensed; and
190	190	(2) the waiver will not have an adverse effect on
191	191	resident health and safety.
192	192	(g) A facility that receives a waiver under Subsection (f)
193	193	is not required to include the waived violation in the facility's
194	194	plan to correct violations submitted under Section 252.044.
195	195	SECTION 9. Section 252.040, Health and Safety Code, is
196	196	amended by amending Subsection (i) and adding Subsections (j), (k),
197	197	and (l) to read as follows:
198	198	(i) The department shall have specialized staff conduct
199	199	inspections, surveys, or investigations of facilities under this
200	200	section. A department employee may not conduct an inspection,
201	201	survey, or investigation of a facility unless the employee is a
202	202	health care professional licensed in this state. An officer or
203	203	employee of a facility may require the department employee to
204	204	provide proof of the licensure before the department employee
205	205	conducts an inspection, survey, or investigation.
206	206	(j) The department or the department's representative who
207	207	conducts an inspection, survey, or investigation may not cite a
208	208	violation unless the department or the department's representative
209	209	finds, by a preponderance of the evidence, that a violation has
210	210	occurred.
211	211	(k) The department or the department's representative shall
212	212	include on the department's inspection form:
213	213	(1) a brief description of the evidence that supports
214	214	a finding that a violation occurred; and
215	215	(2) the name and title of the person who found each
216	216	violation.
217	217	(l) The executive commissioner of the Health and Human
218	218	Services Commission shall adopt rules to ensure that among the
219	219	community services regions the department uniformly administers
220	220	inspections, surveys, and investigations and consistently
221	221	interprets and enforces the rules and laws regulating the
222	222	facilities licensed under this chapter. The executive commissioner
223	223	shall prepare and deliver a quarterly progress report on uniform
224	224	administration, interpretation, and enforcement to the Health and
225	225	Human Services Commission and the appropriate health and human
226	226	services legislative standing committees.
227	227	SECTION 10. Subchapter B, Chapter 252, Health and Safety
228	228	Code, is amended by adding Section 252.0401 to read as follows:
229	229	Sec. 252.0401. CIVIL LIABILITY. (a) A facility may bring a
230	230	civil action against a representative of the department who
231	231	conducts an inspection, survey, or investigation under this chapter
232	232	and in bad faith or with a malicious purpose makes a false or
233	233	inaccurate statement of a violation found during the inspection,
234	234	survey, or investigation.
235	235	(b) An employee or representative of the department who is
236	236	found liable under this section is not entitled to indemnification
237	237	under Chapter 104, Civil Practice and Remedies Code.
238	238	SECTION 11. Section 252.044, Health and Safety Code, is
239	239	amended by adding Subsections (b-1) and (d) to read as follows:
240	240	(b-1) The department or the department's representative may
241	241	not conduct an additional inspection, survey, or investigation
242	242	during an additional exit conference. The department or the
243	243	department's representative may not use an additional exit
244	244	conference to retaliate against a facility for:
245	245	(1) filing a complaint against the department or the
246	246	department's representative regarding an inspection, survey, or
247	247	investigation; or
248	248	(2) requesting an administrative hearing to contest a
249	249	finding of a violation of this chapter.
250	250	(d) The department or the department's representative may
251	251	not require a facility, through an inspection, survey, or
252	252	investigation or the final official statement of violations, to
253	253	take any action that conflicts with best practices for the facility
254	254	or a written order of a physician. A facility shall provide evidence
255	255	that the statement of violations conflicts with best practices for
256	256	the facility or a written order of a physician in the facility's
257	257	plan to correct violations. A facility is not required to correct a
258	258	violation that conflicts with best practices for the facility or
259	259	the written orders of a physician.
260	260	SECTION 12. Chapter 161, Human Resources Code, is amended
261	261	by adding Subchapter J to read as follows:
262	262	SUBCHAPTER J. LEGISLATIVE OVERSIGHT COMMITTEE
263	263	Sec. 161.401. DEFINITIONS. In this subchapter:
264	264	(1) "Committee" means the long-term care legislative
265	265	oversight committee.
266	266	(2) "Facility" means:
267	267	(A) an institution licensed under Chapter 242,
268	268	Health and Safety Code;
269	269	(B) an assisted living facility licensed under
270	270	Chapter 247, Health and Safety Code;
271	271	(C) a home and community support services agency
272	272	licensed under Chapter 142, Health and Safety Code; and
273	273	(D) an intermediate care facility licensed under
274	274	Chapter 252, Health and Safety Code.
275	275	Sec. 161.402. COMPOSITION OF COMMITTEE; PRESIDING OFFICER.
276	276	(a) The committee is composed of:
277	277	(1) two members of the senate and one public member
278	278	appointed by the lieutenant governor; and
279	279	(2) two members of the house of representatives and
280	280	one public member appointed by the speaker of the house of
281	281	representatives.
282	282	(b) A member of the committee serves at the pleasure of the
283	283	appointing official.
284	284	(c) The lieutenant governor and the speaker of the house of
285	285	representatives shall appoint the presiding officer of the
286	286	committee on an alternating basis. The presiding officer shall
287	287	serve a two-year term expiring February 1 of each odd-numbered
288	288	year.
289	289	Sec. 161.403. COMMITTEE POWERS AND DUTIES. (a) The
290	290	committee:
291	291	(1) shall meet at the call of the presiding officer;
292	292	(2) may receive, review, and comment on rules proposed
293	293	by the department;
294	294	(3) shall review recommendations for legislation
295	295	proposed by the department or the attorney general relating to
296	296	facilities; and
297	297	(4) shall propose legislation relating to facilities.
298	298	(b) The committee may hear a facility's complaint regarding
299	299	an operational dispute and make a recommendation to the department.
300	300	(c) The committee may issue process, in accordance with
301	301	Section 301.024, Government Code, to compel the attendance of
302	302	witnesses and the production of books, records, documents, and
303	303	instruments required by the committee.
304	304	(d) The committee shall monitor the effectiveness and
305	305	efficiency of the facility regulatory system of this state.
306	306	(e) The committee may request reports and other information
307	307	from the department and the attorney general relating to:
308	308	(1) the facility regulatory and enforcement system of
309	309	this state;
310	310	(2) the standards for including a facility in the STAR
311	311	+ PLUS Medicaid managed care program; and
312	312	(3) the effectiveness of the STAR + PLUS Medicaid
313	313	managed care program in reducing preventable acute care costs.
314	314	(f) The committee shall use the existing staff resources of
315	315	the senate and the house of representatives to assist the committee
316	316	in performing its duties under this section.
317	317	Sec. 161.404. REPORT. (a) The committee shall submit a
318	318	report to the governor, lieutenant governor, and speaker of the
319	319	house of representatives not later than November 15 of each
320	320	even-numbered year.
321	321	(b) The report must include:
322	322	(1) identification of significant problems in the
323	323	facility regulatory and enforcement system, with recommendations
324	324	for action;
325	325	(2) the effectiveness and efficiency of the facility
326	326	regulatory system of this state, with recommendations for action;
327	327	and
328	328	(3) recommendations for legislative action, if
329	329	necessary or appropriate.
330	330	Sec. 161.405. EXPIRATION. (a) This subchapter expires
331	331	September 1, 2019.
332	332	SECTION 13. (a) As soon as practicable after the effective
333	333	date of this Act, the executive commissioner of the Health and Human
334	334	Services Commission shall adopt the rules necessary to implement
335	335	the changes in law made by this Act.
336	336	(b) Not later than December 1, 2015, the Department of Aging
337	337	and Disability Services shall modify inspection forms to conform to
338	338	the requirements of this Act.
339	339	(c) The changes in law made by this Act apply only to an
340	340	inspection, survey, or investigation conducted on or after January
341	341	1, 2016.
342	342	(d) As soon as practicable after the effective date of this
343	343	Act, the lieutenant governor and the speaker of the house of
344	344	representatives shall appoint members to the long-term care
345	345	legislative oversight committee as required by Subchapter J,
346	346	Chapter 161, Human Resources Code, as added by this Act. The
347	347	speaker of the house of representatives shall appoint the first
348	348	presiding officer of the committee.
349	349	SECTION 14. This Act takes effect September 1, 2015.